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A tale of two prosecutions: Same facts, different result

I've previously covered the disturbing case of Andrew Holland, the Wrexham man charged under the newish offence of possessing "extreme pornography" for two short video clips. One of them featured an animated tiger engaging in a sexual act with a human being; the other was purely human, and involved some sort of injury to male genitalia. It was the bizarre nature of the first clip that attracted the attention of some national newspapers, but when that charge was dropped (when the the clip's soundtrack, which referenced an old Frosties commercial, was revealed, even the prosecution had to concede that it was a joke rather than in any sense "pornographic") the press lost interest. Andrew Holland, for his part, seemed to believe that his nightmare was over. It wasn't. The CPS persisted in its prosecution of the second charge, based on a a mere six seconds of "extreme" material.

Yesterday, just as the trial was due to begin, the CPS offered no evidence and he was formally cleared. But it was a close-run thing. Holland had originally been advised by his solicitor that he had no defence - even though he had received the clip (which was sent to his mobile phone) unsolicited and apparently as a joke. He pled guilty. He then was shocked to be told by the judge at the initial hearing that he could go to prison. That, and the interest his case had provoked from campaign groups Backlash and CAAN, persuaded him to apply to have his guilty plea vacated. This was granted in May. Backlash, whose regular legal adviser Myles Jackman had taken on the case, noted at the time that "had he not contacted Backlash in the first place he would have been sentenced for an offence which he may have been misadvised that he did not have a defence for." And the case only came to their attention thanks to the newsworthiness of the initial "tiger-sex" angle.

If the CPS had merely charged him with possession of the second clip he would almost certainly have pled guilty and been sentenced with little publicity. As it is, Backlash assembled a team of experts prepared to testify that the clip was not in fact pornographic but (like the tiger clip) intended as a sick joke. Faced with possible embarrassment, the CPS decided to throw in the towel. But this concession raises serious questions - not just about the decision to prosecute in this case, but about the application of this newish law more widely. It would seem, indeed, that Andrew Holland is the first person charged with the offence of possessing "extreme pornography" who has ever mounted a defence.

As longer-standing readers may recall, the law - the infamous Section 63 of the Criminal Justice and Immigration Act 2008 - was brought in in response to a campaign led by the mother of murder victim Jane Longhurst. The murderer, Graham Coutts, was claimed at the trial to have been "addicted" to extreme porn featuring rape and violence against women. The extent to which exposure to this kind of material provokes real-world violence has long been a contested issue - familiar from the 1980s moral panics surrounding "video nasties" or more recent but eerily similar rows about computer games. What is new now - and dangerous - is that the law, adopting the precedent of pornography legislation, criminalises mere possession, rather than production or distribution, of banned material.

The Labour government assured Parliament that s.63 would only be used in cases where someone's extreme porn habit raised serious cause for concern. The stated - and apparently reasonable - aim was to prevent another Coutts. The law, though, does not single out "addicts" who show a demonstrable obsession with disturbing material. Anyone found in possession of even a single rather nebulously defined "extreme" image is potentially caught by it, however the image came into their possession, even if they received it unsolicited.

The campaign against the law has been led by groups representing people who have an erotic - and they would insist wholly legitimate - interest in "violent" (or, to a conventional mind, disturbing) images. Their fear was that the government was stigmatising and even outlawing their sexuality. But at least they are aware of the law, and are able to take action to protect themselves - for example by deleting images the might fall foul of it from their hard drives. Cases like that of Andrew Holland demonstrate how s.63 has given the police a handy weapon to use against anyone who comes to their attention, and who just happens to have dodgy material on their mobile phone or computer. Given the viral nature of much "inappropriate" material, this could potentially criminalise many people who have never heard of the law and whose sexual tastes are entirely mainstream.

This seems to be what happened to Andrew Holland. And another case this week shows just how fortunate he has been. The Sunderland Echo reports the conviction of 23-year old Michael Nelson for possession of a very similar-sounding clip. The offending footage was found on his mobile phone "after he was arrested and taken to Gill Bridge police station". There's no information about why he was originally arrested - it might have been for something entirely unconnected. As in the Wrexham case, the clip "showed a man's genitals being mutilated" (which might simply be journo-speak for pierced); it had been sent to his phone, unsolicited. Nelson told the police that the images were "going about the streets". It might even have been the very same clip. Lacking decent legal advice, however, he now has a criminal record and was sentenced to 200 hours community service. And yet no other disturbing images were found in his possession, he had no previous criminal record, he didn't attempt to pass the clip to anyone else and his solicitor told the court that it was "not the kind of matter he was seeking or gets any gratification from."

District Judge Roger Elsey, passing sentence, said that "there is no doubt that this was a revolting and perverted piece of video and there is no reasonable explanation for this being on your mobile for the time it was." He would have passed a jail sentence, he added, had the defendant passed it on. Nelson's own solicitor doesn't seem to have been much help, saying in mitigation(!) that "I can't imagine why you would want to watch this, unless you were the particular type of person that found some gratification in it." Prosecution, judge and even the defence, in other words, all assumed that the clip involved was sexual in nature. Yet no evidence was produced during the trial for any sexual motivation, which the defendant plausibly denied. Despite this, and merely because the police stumbled up a tasteless clip on a mobile phone, Michael Nelson stands convicted of a sex offence.

To quote Backlash, "It is unclear who benefits from the costs of prosecuting and punishing this man. This case also has nothing to do with the original intent of the legislation, which was to prevent harm to women." I would go further. On the facts as described by the Echo, it strikes me as a clear abuse of prosecutorial process.

Was there even a case to answer? Context matters, of course. To be illegal under s.63, an image must be both pornographic (i.e. intended for the purposes of sexual arousal), "realistic" and "extreme". There are various categories of extreme; the one at issue here falls under the rubric of "an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals". The image in the Wrexham case might have passed this part of the test - but then so might an explicit film of circumcision, which arguably inflicts a serious (if socially approbated or religiously demanded) and irreversible injury on the genitals. Yet a video depicting circumcision would hardly be judged to fall foul of the law. No-one would suspect it of being "sexual" in intent.

As was said in court in Sunderland, few people are likely to be turned on by scenes of genital mutilation or torture. Yet neither prosecution nor defence drew the obvious conclusion from such a thought, coupled with the apparently wide spread of the clip - that it may never have been intended as pornography, but was rather intended to shock or gross out rather than sexually arouse the viewer. Indeed, the clip involved in the Wrexham case (and possibly the Sunderland one as well, to judge from the report) was too short to be plausibly, in itself, a pornographic movie. I cannot confirm this, but I have been told by someone close to the defence that the brief "extreme" clip was extracted (by the CPS) from a longer montage that has widely circulated on the internet for some years and has been viewed by more than two million people. It enjoys a certain cult status, indeed.

This source suggests that the sequence was originally put together, not for sexual arousal, but to advertise a body modification website. The film itself is no longer widely available online - but YouTube offers a large selection of "reaction" videos showing people's faces as they view the compilation of excruciating scenes. The viewers are horrified, grossed-out, disbelieving, nervously laughing. But they are not sexually aroused.

Many people thought that s.63 was an unnecessary and illiberal law to begin with, of course - why shouldn't consenting adults watch other consenting adults doing painful things to each other? - but these two cases raise a wider problem. Jack of Kent, or David Allen Green as he is professionally known, defines "Bad Law" in the criminal context as "when either criminal liability is used in an inappropriate way, or when charging and prosecution decisions (which effectively mean whether there will be a conviction in many cases) are made on a misconceived basis." Or you could say that Bad Law happens when the authorities forget the public interest rationale of a particular offence and treat it merely as a mechanism for getting a conviction. Two cases in which DAG has played a prominent advisory role were those of Paul Clarke, who was found guilty of possessing a shotgun which he had handed in to the police (at one point he was facing an automatic five year prison sentence, though thankfully the judge was able to find "exceptional circumstances") and the ongoing case of Paul Chambers, whose Twitter joke about Nottingham airport led to his conviction for communicating a "bomb hoax".

In both cases, the letter of the law was used as a pretext for bringing charges despite the lack of any real public interest in doing so. Part of the problem may lie in the narrow way in which "public interest" is defined by the Crown Prosecution Service. CPS guidelines assume that once the evidence is strong enough to suggest a likelihood of conviction, a prosecution will always be in the public interest unless there are "clear" reasons suggesting otherwise. As the latest edition of the CPS code makes plain: "A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour." This is chilling. Prosecution is no light matter. It can have an utterly devastating effect on anyone's life - especially on someone who is normally a law-abiding citizen. I suspect that because they are dealing with criminal cases day in, day out, CPS lawyers easily overlook this. And they have targets to meet.

Nevertheless, even the CPS code offers factors that ought to have weighed against the decision to prosecute a man for possessing a single short clip which he had not solicited, which he did not pass on, and which only came to the police's attention when they arrested him on apparently unrelated grounds. For example, Section 4.17 (e), where "the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement."

It looks like another bad call for Keir Starmer's increasingly discredited organisation. Whether the dropping of the Wrexham case means that the result in Sunderland won't be repeated is difficult to say - since the first case was not heard, it remains moot whether or not the clip (which no jury got to see) would have been interpreted as "extreme porn". Perhaps the CPS wanted to avoid testing it. But that's the point, of course: miscarriages of justice are frequently the result, not of faked evidence or biased juries, but of defendants' own decision (under fear of harsher punishment and often on the advice of their own lawyers) to plead guilty when they would have been better advised to stand and fight.